Interest and Perspective

Article I, Section 9 of the Constitution prohibits Congress from suspending the writ of habeas corpus except in times of rebellion, that is when the courts are no longer functioning. Congress has just done this, and in two short weeks no less. If this act passes muster in the Supreme Court, we're no longer living in a free country.


Marty Leberman take Julian ku to task at Opinio Juris: Opinio Juris Has the Writ of Habeas Corpus Been Suspended? Nope. (Updated)

Marty Lederman:
Julian: The versions I've seen, including the version the House (and presumably the Senate) approved -- http://makeashorterlink.com/?E11E53DDD -- cut off habeas for all "enemy combatant" aliens, without geographic restrictions (and including, presumably, even POWs). If that's right, it would overrule Quirin (habeas for aliens in the U.S.) and Yamashita (alien in occupied territory), as well as Rasul.


You write: "Congress, rightly or wrongly, has the power to limit the scope of federal court jurisdiction over claims filed by aliens outside the U.S. The Supreme Court has not ruled otherwise, at least not yet."


First of all, what about the power to limit habeas rights of aliens in the U.S. or its occupied territories? Can Congress eliminate that, as it appears to have done here? Second, I will concede that the Court has not yet ruled "otherwise," because it hasn't addressed the question directly. But why are you so certain that Congress "has the power to limit the scope of federal court jurisdiction over claims filed by aliens outside the U.S.," especially in Guantanamo, over which the U.S. has complete control? If you think Congress could not suspend habeas as to detainees we bring to South Carolina, but could suspend it if we instead bring the same detainees to an offshore island, what possible constitutional sense would such a distinction make?


Oh, and by the way: Your title is "Has the Writ of Habeas Corpus Been Suspended? Nope."


Well, it has been suspended. Today it exists for aliens in the U.S., in occupied territories, and at GTMO (and perhaps elsewhere). Tomorrow it won't. It *might* be that this suspension is not one the Suspension Clause recognizes because the persons in question are aliens -- although you've given no basis for that, and the text of the Clause doesn't provide one -- but a suspension it most surely is. Just ask any of the detainees with petitions currently pending.

Marty Lederman:
1. "And I don't think Quirin or Yamashita actually established that the habeas right exists in those cases, which was also not directly considered."

Not so. In each case, the Court rejected the President's assertion that he could deny the detainee the right to challenge the legality of military-commission proceedings (and detention) by writ of habeas corpus. See Quirin, 317 U.S. 1, 25 (1942) ("neither the [President's] Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission"); Yamashita, 327 U.S. 1, 8-9 (1946) ("The courts may inquire whether the detention complained of is within the authority of those detaining the petitioner. . . . [Congress] has not foreclosed their right to contend that the Constitution or laws of the United States withhold authority to proceed with the trial. It has not withdrawn, and the Executive branch of the government could not, unless there was suspension of the writ, withdraw from the courts the duty and power to make such inquiry into the authority of the commission as may be made by habeas corpus.").


2. "[T]he habeas right . . . certainly exists within the territorial U.S. for . . . legal residents."


I take it you mean here a *constitutional* habeas right. If so, I assume this means you agree the bill is unconstitutional as applied to alien residents of the U.S.


3. "It is simply not clear that the Constitution extends all of its rights, including its habeas rights, outside the U.S.- even to occupied territories. Maybe it should, but the Court has never gone that far."


Agreed -- but then, shouldn't the heading of your post be changed from "Has the Writ of Habeas Corpus Been Suspended? Nope." to "Is Congress's suspension of the Writ of Habeas Corpus Unconstitutional? Yes as to resident aliens, but the Question Remains Unresolved as to aliens outside the U.S."?

As one other poster (don't know where or who) said, "Well, at least we get to see what constitutional habeas looks like."

Via Marty Lederman atBalkinization, who points to the (appropriately) "strongly worded New York Times editorial":

Rushing Off a Cliff

Here’s what happens when this irresponsible Congress railroads a profoundly important bill to serve the mindless politics of a midterm election: The Bush administration uses Republicans’ fear of losing their majority to push through ghastly ideas about antiterrorism that will make American troops less safe and do lasting damage to our 217-year-old nation of laws — while actually doing nothing to protect the nation from terrorists. Democrats betray their principles to avoid last-minute attack ads. Our democracy is the big loser.
"

A few days ago Greenpeace "blockaded" a tanker. I wondered at the time what that meant, but there wasn't much on the wires about it. Turns out,

On Tuesday night, environmental protesters hooked themselves up to the ship's mooring lines to stop it leaving. They were later arrested by border guards and fined.

Greenpeace said the activists had moved in when they heard the ship, which they have tried to blockade by anchoring a protest vessel nearby, was about to sail.

Greenpeace won approval for the action from the Estonian government, which impounded the ship - the Probo Koala - after it "discharged toxic waste in Africa that has killed at least eight people, on suspicions it was flushing similar waste into the Baltic sea."

And now,

Trafigura, the Dutch-based oil trading firm which had chartered the ship, issued a statement late on Wednesday denying that the vessel had been impounded and said it had commissioned an international inquiry to examine the Ivory Coast incident.

Thousands of people in Ivory Coast have suffered vomiting, stomach pains and other symptoms caused by toxic fumes from waste from the ship in late August. The incident has stretched the country's health services and forced its cabinet to resign.

Estonia's Environment Ministry said tests of the Baltic waters around the vessel had shown disturbing results.

"Preliminary analysis shows that it contains similar substances as those in the Ivory Coast," a spokesman said.

Trafigura, however, disputed the findings.

"The waste on the Probo Koala in Estonia is not the same waste as discharged in Adidjan," it said in the statement.

The firm has described the waste dumped in Ivory Coast as "chemical slops", a mixture of gasoline, spent caustic soda and water and said it was a normal by-product of cleaning tanks used to transport fuel.

I hope responsible parties are fined as much as possible, preferably out of their pockets.

The UN gets no respect.

In the United States, Annan, who ends 10 years in office on December 31, and the world body are often viewed as standing in the way of American objectives. Elsewhere, he and the U.N. Security Council are often seen as doing America's bidding.

Reuters

here

I'm sure white southerners were also "concern[ed]," "confused," and "uneas[y]" when black students wanted to eat at Woolworth's. That doesn't make violating civil rights ok. In fact, that's exactly why Congress passed Title II.

From: Dear JetBlue Mailed-By: jetblue.com
To:
Date: Sep 15, 2006 2:46 PM
Subject: JetBlue and TSA Security Concerns
Re: email received Wednesday,09/06/06 5:20 PM, Speak Up 1437965

Dear ******,

When you first wrote us expressing your thoughts on the situation at our terminal in New York's JFK airport involving Raed Jarrar, we provided the information we had at the time. We have since completed our internal investigation of the situation, and we would like to provide you with the results.

As you may recall, Mr. Jarrar was approached by JetBlue crewmembers and Transportation Security Administration (TSA) personnel prior to boarding his JetBlue flight. Their purpose was to talk with Mr. Jarrar and relay their observations of other customers' reaction to his T-shirt, which read "We Will Not Be Silent" in both Arabic and English. At no time was Mr. Jarrar told he would not be able to board his JetBlue flight unless and until he removed the T-shirt. The spirit of the conversation was to inform Mr. Jarrar of the unease or confusion other customers' had toward the T-shirt, which they apparently did not fully read or did not understand.

We agree with Mr. Jarrar that it is his Constitutional right to wear what he chooses. In fact, JetBlue does not have a policy regarding apparel, except in cases where profanity or vulgar images or messages may offend our customers. That guidance of course was not applicable in this situation.

Our crewmembers are responsible for providing safe and secure travel for all customers, however, and anything that causes concern or confusion at the airport or on the flight must be addressed, in a respectful and sensitive manner. Based on our investigation, we feel our crewmembers acted appropriately and with due sensitivity to Mr. Jarrar in addressing this situation. We also believe that TSA personnel acted appropriately and with all due respect toward Mr. Jarrar.

We believe the subsequent media attention of this incident will further sensitize and educate the public on the importance of diversity and acceptance, and as such, we welcome the public's scrutiny of our security measures.

Thank you for the opportunity to provide this information to you directly. We welcome feedback, because serving you is our purpose.

Best regards,
Jason Ward
Director Customer Commitment
JetBlue Airways

Last week, after receiving control of the prisons, Iraq executed 27 people. Considering the state of the Iraqi justice and political systems, I have a hard time believing those sentences are the result of full and fair proceedings. What rights did these people have at trial?

27 are hanged at Abu Ghraib in first mass execution since Saddam's fall
By Oliver Poole, Iraq Correspondent
August 9, 2006

Jason:

Thanks very much for your reply. I do have a few comments on your form letter. I am getting my information from an account Mr. Jarrar wrote at OneWorld.net and so I apologize for any inaccuracies in my facts, which I have admittedly learned about from an interested party.

You imply that a t-shirt with Arabic script is "offensive or vulgar," and that security concerns and "sensitiv[ity] to the concerns of all of [y]our customers" require you to take the action you did. So your trying to pawn your company's decision off on other parties, presumably the government, given the OneWorld.net account, appears disingenuous. Your company must not assist the government in violating civil liberties.

I understand that an Inspector made the initial request for Mr. Jarrar to remove his shirt. However, the inspector informed Mr. Jarrar that JetBlue customers were complaining, so presumably the government was assisting the airline staff at the staff's request.

Also, your agent was also present and assisted the government agents. I would like to commend your agent for the apparently kind way she found another shirt for Mr. Jarrar to wear, although requiring him to change shirts is itself offensive and vulgar.

Finally, your agent put Mr. Jarrar in the back of the plane, adding insult to injury. I understand that she probably did this at the behest of the complaining customers, but doing so certainly shows those complaining customers that they were justified and that your company treats some people differently than others. If I found crying babies offensive and vulgar, I'm sure you would not accede to my wish that you put them in the back. In the same vein you should not accede to customers complaining of a shirt that itself expressed Mr. Jarrar's viewpoint that free speech is valuable.

Thanks for your time.

******

From: Dear JetBlue

Mailed-By: jetblue.com

Re: email received Thursday,08/31/06

Dear *******,

Thank you for giving us an opportunity to address the situation reported on DemocracyNow.org and other sites. Currently, we are working with the TSA to understand the situation. We are gathering information and our initial findings tell us that the request to have him remove his T-shirt was not made by a JetBlue Crewmember. We are confident that this investigation will help us all better understand the events of that day.

JetBlue has no policy regarding messages on apparel. We are a family-friendly airline. Anything offensive or vulgar will be discussed with the individual in a sensitive and respectful manner.

Our fundamental responsibility as an airline is to provide safe and secure travel for all of our customers. This requires us to be sensitive to the concerns of all of our customers, while also upholding the rights of the individual. We value diversity, among our customers as well as our crewmembers. We take our responsibility seriously, and should there be an opportunity to improve our effectiveness, we will take the appropriate action.

We appreciate your interest in this matter as well as your understanding of all our customers' needs. We remain available should you have any further questions or concerns.

Sincerely,

Jason Ward
Director Customer Commitment
JetBlue Airways